Before SEKAQUAPTEWA, Chief Judge

On March 29, 1996, we remanded this case to the Tribal Court to decide whether Hopi customs, laws and traditions should have been used in deciding the appropriate statute of limitations. Respondent filed a timely request for rehearing on April 10, 1996.

FACTUAL BACKGROUND

The history for this case is laid out in detail in our previous decision of March 29. However, as a summary, we note that there were two claims brought at the trial court: the first (CIV-014-84) was filed on April 23, 1984, and the second (CIV-020-94) was filed on June 9, 1984. The dispute between the parties concerns a claim for repayment of a loan (number 185), which had been made by the Hopi Indian Credit Association ("Credit Association"), appellant, to Lee S. and Mary Inez Thomas ("Thomases"), respondents. The loan was made on April 23, 1969, and the Thomases went into default sometime in 1974.

The first claim was dismissed on June 18, 1984. The transcript for the hearing and decision was not part of the record to this court on appeal, so it is unknown if the claim was dismissed on the statute of limitations or the failure to join an indispensable party (Mary Inez Thomas). A virtually identical claim was then filed, except that it added Mary Inez Thomas as one of the parties.

The second trial court also dismissed the second claim, but this time, there was a record. The trial court dismissed the second claim on August 8, 1984, after applying the federal, six-year statute of limitations. The court did not consider Hopi custom, culture or tradition with respect to the applicable statute of limitations for that action. We remanded the case because it was an error for the trial court to have applied foreign law before considering all relevant Hopi law, which may include Hopi custom, culture and tradition.

The Thomases request a rehearing of our March 29 decision, because they claim that under the legal doctrine of res judicata, the trial court's dismissal of the first civil complaint precluded the Credit Association from filing a second civil complaint on the same issues. (Motion for Rehearing, at p. l .) They suggest that the Credit Association could have appealed the first dismissed complaint, but that it was improper for it to have filed a second complaint. Under that theory, because the second suit should not have been filed, an appeal of that decision was improper, and our decision to remand the second complaint back to the trial court was also improper.

DISCUSSION

A court's order or judgment can only have preclusive effect on future litigation if that order or judgment constitutes a final decision on the merits. Set Shoup v. Bell & Howell Co., 872 F.2d 1178, 1179 (4th Cir. 1989); Fed. R. Civ. Pro. 41(b); Restatement (2d) of Judgments § 19 (1982). A decision to dismiss a case based on the running of the statute of limitations is generally considered on the merits. Reinke v. Boden, 45 F.3d 166, 169 (7th Cir. 1995). A decision to dismiss a case for failure to join an indispensable party is generally considered not on the merits. The policy behind those categorizations is that if a cause of action is time barred, it cannot be corrected through new pleadings. However, if a complaint fails to name an indispensable party, then with a fairly simple change to the pleadings, the cause of action may be allowed to proceed.

When a court renders a judgment on any grounds other than the merit of the cause before it, then the doctrine of res judicata cannot apply. When a court does not indicate why it reached its decision, but it could have rested on either the merits or some other plausible ground, then in most cases, the doctrine of res judictaa also does not apply.

In this case, the length of time between the loan default and the filing of the first complaint is at least ten years. Therefore, it seems clear that no jurisdiction would have recognized the Credit Association's claim so late after its cause of action was created. On the otter hand, it is equally clear that court did not abuse its discretion in finding Mary Inez Thomas to have been an indispensable party. Just like the second trial court, we are faced with two plausible legal grounds for the first case having been dismissed: one ground (the statute of limitations) is on the merits, but the other (failure to join an indispensable party) is not.

Absent evidence that the trial court did actually make a finding on the record as to the reason for its decision to dismiss the first complaint, we will not choose one for it. Because the first decision may or may not have been on the merits, we will not apply the doctrine of res judicata to preclude the second complaint.

We note that either party had a right to request the first trial court to place the grounds for dismissal on the record, pursuant to Hopi Indian Rule of Civil and Criminal Procedure 24.

ORDER OF THE COURT

The request for rehearing is DENIED.